Farah v Abdullahi & Ors

A claimant may proceed against an unnamed driver where the proceedings may confer a real benefit, even though the insurer’s liability under section 151 of the Road Traffic Act 1988 is disputed or may be defeated by avoidance of the policy. The relevant question is whether the claim is capable of producing a remedy of value, including through the uninsured-driver compensation scheme.

Permission is not required before issuing proceedings against an unnamed defendant in such circumstances. Service may be authorised on an insurer with a direct financial and legal interest in the claim. Material non-disclosure on an application without notice does not automatically require an order to be set aside; the court must consider whether the non-disclosure was innocent, caused advantage, and whether a fresh application would serve justice.

The claimant, who lacked capacity, was catastrophically injured in a road accident involving a Ford Focus and a Mercedes. The Mercedes driver was unidentified. Proceedings were issued against that driver as a person unknown and the sealed claim form was served on the Mercedes insurer under an order made pursuant to CPR r 6.15.

The insurer applied to set aside that order. It argued that the principles in Cameron v Hussain did not apply because it had obtained a declaration avoiding the policy ab initio, and that permission to issue, valid alternative service, and full disclosure requirements had not been satisfied.

1. The application was dismissed. The order permitting service on the fourth defendant on behalf of the unnamed driver remained in force.
2. The relevant principle from Cameron v Hussain was whether a judgment against an unnamed defendant could confer a real benefit on the claimant. That principle did not depend on incontrovertible section 151 liability. Here, a real benefit could arise if the avoidance declaration were successfully challenged, particularly in light of Fidelidade-Companhia de Seguros SA v Caisse Suisse de Compensation & Ors. A benefit could also arise through the Motor Insurers’ Bureau’s liability under the Uninsured Drivers Agreement and the Article 75 insurer mechanism.
3. It would be arbitrary to confine claims against unnamed drivers to cases where section 151 liability was already established. At the issue and service stages, a road accident victim may be unable to know whether the policy can be avoided. The claim was therefore both efficacious and consistent with the overriding objective.
4. No permission was required before issuing a claim form against the unnamed driver. The Practice Directions contemplated that parties might be unnamed where appropriate, and the Civil Procedure Rules imposed no express permission requirement. Jurisdiction was engaged by service, not merely by issue.
5. Service on the insurer was permissible under CPR r 6.15. The insurer had a direct and relevant interest, was subrogated to the defence, and represented the party with the financial interest in the proceedings. The inability to serve an unnamed person supplied a good reason for alternative service. The omission of the deemed-service details required by CPR r 6.15(4) could be rectified by further order.
6. The claimant should have disclosed the insurer’s avoidance declaration when seeking relief without notice. Applying the principles in Brink’s Mat v Elcombe, however, the non-disclosure was innocent, produced no material advantage, and did not justify setting aside the order. Requiring a fresh application would waste costs and fail to serve justice.

Not stated in the judgment.